The Financial and Administrative Independence of the UK Supreme Court: Five Years On

The Financial and Administrative Independence of the UK Supreme Court: Five Years On

Graham Gee [1]

Cite as Gee, G., "The Financial and Administrative Independence of The UK Supreme Court: Five Years On", (2015) 21(1) European Journal of Current Legal Issues.


This article considers the financial and administrative independence of the UK Supreme Court during its first five years. Taking inspiration from Alan Paterson's book Final Judgment: The Last Law Lords and the Supreme Court, where he characterizes appellate decision-making in a top court such as the Supreme Court as a collective social process, the article begins by identifying, in general terms, some of the collective and social dimensions to judicial independence. The article explains how one counterintuitive consequence of insisting on a more formal vision of the separation of powers in the UK in recent years has been to require the Supreme Court to interact with other actors about administrative and financial matters, which in turn brings into better perspective the continuing (and arguably heightened) importance of the collective and social dimensions to the relationships between the Court, the Ministry of Justice and a range of other actors. Ultimately, the article suggests that the financial and administrative independence of the Supreme Court should be viewed as a collective social process, where informal factors can both help and hinder the promotion of stable relations between the top court and a range of actors.

1. Introduction

In Final Judgment Alan Paterson compares the decision-making cultures of the last years of the judicial House of Lords with the initial years of the Supreme Court to tease out a mix of change and continuity in the working practices of the UK's top judges. [2] He views appellate decision-making as a collective social process, best analyzed through a series of 'dialogues', understood in a literal sense. [3] He explores dialogues between judges on the top court and those with whom they interact most frequently: each other; counsel; judicial assistants; judges in the Court of Appeal; senior judges in Scotland; international judges; ministers and politicians. By examining the range, rules and content of such dialogues, Paterson uncovers several of the less obvious ways in which the UK's top judges have altered how they conduct their judicial business. Across the book Paterson explains how changes are often subtle and sporadic, with lineages traceable to long before the top judges relocated from the Appellate Committee of the House of Lords to the Supreme Court. This leaves him well positioned to differentiate between the substantive changes that really matter and the more superficial ones that do not. In doing so, Paterson shows how changes to the social process of appellate decision-making are often shaped as much by informal exchanges, office geography and workplace relationships as more formal processes and structures. In many ways, the role of informal factors in shaping the collective and social dimensions to appellate decision-making is one of the most important insights of Paterson's work. In most of his writing on top courts, Paterson concentrates on their judicial work. [4] In this article, my focus is on the Supreme Court's non-judicial business, and its administrative and financial arrangements in particular. Taking a leaf out of Paterson's book, I draw on interviews with many of those most closely involved in the management and leadership of the Supreme Court to show how its financial and administrative independence can also be viewed as a collective social process fashioned as much by informal as formal factors. [5]

The Supreme Court's first five years have been marked by 'very very scratchy relations' with the Ministry of Justice, as one senior official put it. Many of the 'strains and stresses' (to use the words of one Justice) between the Court and the Ministry resulted from the imperative to cut expenditure across Whitehall following the financial crisis, and were therefore perhaps inevitable no matter the precise blend of formal and informal factors. At the same time, the lowest ebbs in the relationship between the two are more or less directly attributable to informal factors, including personalities, staff turnover and the skill-set of this or that officeholder. A noticeable improvement in the relationship in the last couple of years is also related to informal factors such as these. It is true, of course, that the Constitutional Reform Act 2005 gives expression to a more formal account of the separation of powers by relocating the UK's top judges away from the House of Lords to their own building in a newly established institution on the other side of Parliament Square. [6] It is also true that detailed statutory provisions govern several aspects of the Court's administration, with its day-to-day running shaped by the more formal, business-like culture of Whitehall rather than the informal, old-world culture of Westminster. Yet, despite a more formal institutional landscape, informal factors have acquired a heightened importance in moulding the top court's relations with a range of actors. Or differently put: one counterintuitive consequence of insisting on a more formal vision of the separation of powers has been to require the Court to interact with other actors about administrative and financial matters, which in turn makes informal factors more important, not less. My objective in this article is to draw on the Court's initial five years to explain why its financial and administrative independence should be seen as a collective social process, where informal factors can both help and hinder the promotion of stable and respectful relations between the Justices, the Lord Chancellor and officials. Before drilling down on some of the nitty-gritty of the Court's financial and administrative arrangements, I want to begin with a wider lens to identify, in more general terms, some of the collective and social dimensions to judicial independence.

2. Judicial Independence: Collective and Social

Judicial independence expresses the intuition that judges should be equipped, individually and institutionally, to resolve disputes impartially, according to law and free from improper pressure. [7] From this basic intuition, it is possible to derive a number of practical considerations relating to such matters as the tenure, selection, remuneration, immunity, continuing education and conduct of judges as well as the funding and administration of the judicial system as a whole. [8] However, judicial independence is not only about judges (or, for that matter, the judicial system). It is about lawyers, litigants and administrators in the legal system as well. It is also about ministers, MPs, peers, civil servants, parliamentary clerks and other actors in the political system who are involved in everyday decisions affecting the running of the courts. More particularly, it is about the willingness of a great variety of judicial, legal and political actors to interact in ways necessary to secure independence for individual judges and the judiciary as a branch of government. To take a very simple example: ministers must adequately fund the courts, which requires them to consult in good faith and on an ongoing basis with judges and officials to understand the financial, administrative, staffing and technological needs of the courts. In deciding how much funding is required, ministers must listen to members of the legal profession to understand, for example, how legal aid reforms might influence the conduct of trials and the nature of legal representation. All of this is to say that judicial independence results, in a very real sense, from the interaction of judicial, political and legal actors. Judicial independence is, in other words, a collective enterprise. [9]

At one level, this might seem trivially true. Judicial independence is generally recognized as 'relational', [10] and it follows that most discussions concentrate on the connections between judges and a variety of actors (ministers, politicians, officials, litigants, interest groups, other judges and so forth). At another level, the collective dimensions to judicial independence are seldom spelled out in full. Most writing on judicial independence tends to focus on its individual, institutional, structural or behavioural dimensions, with very little attention paid to its collective character. Yet, characterizing judicial independence as a collective endeavour brings into proper perspective the need for a broad-based recognition of the political, social and economic goals furthered, over the long haul, by independent judicial decision-making. There must exist, in particular, 'a politically effective constituency for judicial independence'. [11] It is vital, in other words, that ministers, politicians and officials from across the political spectrum appreciate the indispensability of an independent judiciary and also grasp its basic institutional implications. None of this assumes that judges, politicians and civil servants will agree about the fine details of how best to institutionalize a common commitment to an independent judiciary. Nor does it deny that in the face of disagreement about what exactly judicial independence demands in specific contexts, tensions may arise. It is simply to acknowledge that successfully realizing their common commitment to judicial independence involves judges, politicians and officials engaging in good faith negotiations about a great many issues relating to the funding, organization, management and leadership of the judiciary.

As a collective enterprise built upon a myriad of interactions between judges, ministers and officials, judicial independence inevitably has significant social dimensions. The exact social dimensions-and, more particularly, the degree to which they promote a common commitment to an independent judiciary -will vary depending on considerations such as: the nature and frequency of contact between actors and the channels they use to communicate with each other; their ability to relate to each other's concerns; their ability to grasp the constraints under which each other operates; and the degree to which they share similar values. Formal arrangements have an important role in shaping the social dimensions to judicial independence. For example, there might be a statutory requirement on ministers to consult with senior judges or to report certain information to them or vice versa. Informal factors are also important: personal relationships might smooth or inflame tensions, for example, while a rapid turnover of staff might render it more challenging to foster the trust and confidence of other actors. In large measure, the social dimensions to judicial independence are the product of how formal and informal factors interrelate: for example, the effectiveness of formally allocating a new responsibility to a particular institution will often depend on informal factors such as the skills, judgment, know-how and workload of the people who staff that institution. One final point bears emphasis: the collective and social character of judicial independence will not only vary between countries, but perhaps also between different courts in any one country and also across time in any one part of the court system.

This is illustrated by contrasting the collective and social dimensions involved in the running of the House of Lords and the Supreme Court. Prior to the Court commencing its work in 2009, there were only a small handful of actors involved in the day-in-day-out running of the Law Lords, with most decisions taken by the Senior Law Lord, supported by the Principal Clerk of the Judicial Office of the House of Lords. Often, the Senior Law Lord took decisions alone, without even consulting the other Law Lords, let alone any outsiders, such as the lawyers who appeared most frequently before them. On financial matters, requests for further expenditure formally required the approval of the Clerk of the Parliaments, the senior administrator in the House of Lords. In practice, approval was little more than a rubber stamp. Of particular note was the very limited scope for ministerial involvement in the everyday running of the Law Lords. By the end of the twentieth century, Lord Chancellors were generally content to let the Law Lords run themselves. [12] Tensions were smoothed by the dual political and judicial nature of the office of Lord Chancellor. Entitled to sit in and preside over the Appellate Committee, and working from rooms in the Palace of Westminster, Lord Chancellors usually had considerable contact with the Law Lords, commanded their trust and confidence and often shared their viewpoints. In short, the collective dimensions to running the Law Lords were concentrated around a relatively small number of actors, with the social dimensions facilitated by the overlapping values of the Law Lords, the Lord Chancellor and parliamentary officials. [13]

As will become clear, the collective dimension to the Court's independence encompasses a wider range of actors from across a differentiated institutional landscape that, following the Constitutional Reform Act, is distinguished by a more formal separation between the political and judicial spheres. The Court itself exemplifies this more formal separation, as does the radically reformed office of Lord Chancellor. [14] The Court must today engage not only with a far greater number of actors in Whitehall and Westminster, but across the UK's multiple political and legal systems as well, each of which has its own distinct culture and sensitivities. There are more interactions for the Court to manage, which in turn creates more room for informal factors to play an important role, such as the personalities of officeholders. It is unsurprising therefore that the social dimensions to running the Court have at times proven challenging for its leaders.

3. The Supreme Court: Organization, Management and Leadership

In judicial terms, the Supreme Court is essentially the same institution as its predecessor. It has a similar composition, [15] after all, and enjoys broadly similar powers. [16] In administrative terms, the Court is a very different institution. It is, for a start, significantly larger. [17] With 40 permanent staff plus a further eight temporary staff, its administrative team is twice the size of that in the Lords. [18] Removed from Parliament, the top court is no longer able to piggyback on the upper chamber for the provision of a range of services (e.g. security; building maintenance; catering and cleaning). Or as a Justice noted: the Court 'is very much running its own affairs. There are things that were done completely unseen in the House of Lords which the Court has to organize itself'. All of this requires a larger staff, most of whom have been socialized in Whitehall. While most of those who assisted the Law Lords were parliamentary officials trained in the inward-looking world of Westminster, the Court's staff are civil servants accustomed to the new public management rigours of value for money, transparency and accountability. The Court is more outward-looking. The Law Lords did not have a communication unit, simply issuing judgments in line with the upper chamber's Standing Orders. The Court, by contrast, has a six-member communications team that issues press releases summarizing judgments, oversees online streaming of hearings and runs public education activities. [19] In short: the Court's administrative limb is more visible, proactive and professional, all of which is reflective of 'a twenty-first century institution steeped in a business-like culture of new public management'. [20]

Overseeing the running of the Court is a leadership 'trinity': the President, the Deputy President and the Chief Executive. [21] By the last years of the judicial House of Lords, and in particular following Lord Bingham's appointment in 2000, the role of Senior Law Lord had evolved into an important leadership position. [22] Though there are some important threads of continuity between the roles of the Senior Law Lord and the Court's President, the latter is different in two main respects. First, its role is much more clearly defined, with several statutory responsibilities. Second, most of the President's responsibilities are exercised in a more inclusive and transparent manner. Among the President's main responsibilities (in several cases supported by the Deputy) are: to decide the composition of the panels that hear applications for permission to appeal and full hearings; to request where necessary any current or retired appellate judges to sit in the Court on a temporary basis; [23] to make the Court's Rules and Practice Directions; [24] and to sit on and chair the panels that recommend candidates for appointment as Justices. [25] In exercising functions such as these, the President exhibits (and in several instances is required by statute to adopt) a more inclusive approach than Senior Law Lords typically did. For example, Senior Law Lords discussed issues such as changes to the Standing Orders and Practice Directions with colleagues and outsiders only as they saw fit, and perhaps not at all. The Court's President, by contrast, discusses proposed changes to the Court's Rules and Practice Directions with both colleagues and also the Court's User Group (a consultative group of solicitors, barristers and advocates from across the UK together with representatives from bodies such as the Law Society and the Bar Council). [26]

The President delegates responsibility for the Court's non-judicial business to the Chief Executive, [27] who has three overarching responsibilities. [28] The first is to manage the Court's finances, with the officeholder accountable for financial controls. This involves working closely with officials from the Ministry and the Treasury when preparing the Court's budget. In difficult economic times, the Chief Executive must advise the President on the level of cuts that can be achieved without endangering the Court's judicial functions. In all of this, the Chief Executive is under a statutory duty to ensure that the Court's funds are used 'to provide an efficient and effective system to support the Court in carrying on its business'. [29] As the Accounting Officer, the Chief Executive is accountable directly to Parliament for the stewardship of public money, and is under a statutory duty to publish an annual report and accounts, copies of which must be presented to Parliament and the devolved administrations. [30] Assisting the Chief Executive are the Management Board, the Remuneration Committee and the Audit Committee, all of which include non-executive members. The Chief Executive's second responsibility is to appoint and manage the Court's administrative staff, which encompasses determining the terms on which they are appointed. [31] The final responsibility is to manage productive relationships with judges, ministers and officials from across the UK. The Chief Executive must ensure that the Court's concerns are fed into policy-making at the heart of the UK and devolved governments. [32] Jenny Rowe, the first Chief Executive who served until 2015, was especially aware of the need 'to build relationships with all parts of the UK', ever conscious that 'politics do not start and stop at Westminster'. [33] The Chief Executive must also ensure that the Justices are well briefed on policy matters of concern to the Court (for example, in 2010, on the possible implications for the top court of the Coalition Government's constitutional reform agenda). [34] All of this is necessary to ensure that the Chief Executive delivers on the Court's business plans and strategies in a complex institutional landscape populated by senior stakeholders at the highest echelons of the UK's political and legal systems.

By now, it should be clear that the Court is a more professional, business-like and closely managed institution than the House of Lords. Its administrative operation has a different character, one shaped by statute, mission statements, business plans, annual reports, and which in an age of austerity has a clear focus on cost effectiveness and budgetary discipline. Today, running the top court depends in large part on the effectiveness of the leadership team, with the Chief Executive performing a crucial role in supporting the President, the Deputy President and the other Justices. This leadership team must manage the important, and often tense, relationships with the Ministry, the Treasury and the devolved administrations. The Court's ability to manage relationships such as these has been aided by the substantial experience of those appointed to leadership roles. The first President (Lord Phillips) had served previously as the Master of the Rolls and the Lord Chief Justice; the first Deputy (Lord Hope) had been head of the Scottish judiciary and also the Second Senior Law Lord; and before her appointment as the Court's first Chief Executive, Jenny Rowe had considerable experience in the corridors of Whitehall after spells in the Attorney General's Office and Lord Chancellor's Department. Leadership skills are likely to prove increasingly important for the Court. In the Court's first five years, after all, nurturing constructive relationships with ministers in both the UK and devolved administrations has been tested by the tightened public purse. The Court's funding arrangements have proved, as one official observed, a source of 'constant tension'. To a substantial extent, tensions were inevitable since the Court was 'unlucky to have been born into a harsh world of economic crisis'. [35] But some tensions flow from the structure of the funding arrangements themselves-and, as we will see below, some of these tensions have been exacerbated in turn by the personalities and politics of some of the key officeholders.

4. Financial Independence

During its first five years the Court-like almost all other public bodies-has endured a challenging funding environment, with this likely to be repeated in the next five years as well. The Court has three sources of funding. First, the Court receives funding from the UK Government as part of the annual budget process in Whitehall (£6.8m in 2012-13). Second, the Court receives fees from its users (£0.9m) augmented by contributions from HM Courts and Tribunals Service (HMCTS) in England and Wales (£5.7m), the Northern Ireland Courts Service (£0.2m) and also the Scottish Government (£0.5m). Finally, the Court receives a small income from market initiatives, such as income from its gift shop and the hiring out of its premises (£0.1m). Overall, the Court's operating costs amount to just under £13m each year, compared with around £1.1m for the Appellate Committee, with the latter so low by virtue of the fact that the Law Lords shared their overheads with the rest of the upper chamber. [36]

4.1 Central Funding

For central funding from the UK Government, the Court must negotiate with the Ministry and the Treasury. The President and Chief Executive determine the Court's bid for resources in line with the Spending Review timeframes. [37] Before formally submitting its bid to the Lord Chancellor, the Chief Executive discusses the Court's financial needs with officials from the Treasury and the Ministry. Once the Court submits its bid, the Lord Chancellor must forward it to the Treasury without alteration. The Lord Chancellor may add comments regarding the bid's merits, but must first discuss these with the President. The Lord Chancellor liaises directly with the Treasury to secure resources for the Court, but this does not preclude the Chief Executive from discussing matters directly with officials at the Treasury. Once the bid has been scrutinized, the Treasury approves the Court's overall financial expenditure for the Spending Review period alongside (but ring-fenced from) the expenditure approved for the Ministry. The Chief Executive submits annual Estimates to the Treasury that are presented to the House of Commons as part of the overall Estimates. The Commons then considers and approves the Estimates, before the funds are transferred. Because the Court has its own Estimate, the funds transferred come directly from the Consolidated Fund.

A key point about this process is that there is scope for the UK Government to impose cuts and mid-year adjustments. This is a significant departure from the way that the Appellate Committee was funded, when the Law Lords were 'cocooned in the comfortable archaism of parliamentary procedure' [38] and, in practice, received the sums they requested with no ministerial involvement at all. During the passage of the Constitutional Reform Bill, concerns were raised that the Treasury might impose cuts on the Court. The Lord Chancellor, Lord Falconer, acknowledged that the Treasury would scrutinize the Court's bid, but countered that in practice this would not pose 'significant issues' since the Court's bid would form such a small proportion of total public expenditure. [39] Spoken before the financial crisis, this proved overly optimistic. Although the Court secured 'a satisfactory budget' [40] in its first year (2009-10), subsequent years proved more challenging, with the Ministry informing the Court in 2010 that the Justices would receive only £12.8m for 2010-11, a reduction of £1m against the Court's initial bid. [41] Realizing that the Court could not be immune from Whitehall's programme of cuts, the Chief Executive sought to identify savings whilst at the same time negotiating with the Ministry over the precise levels of cuts required. Agreement was reached after fraught negotiations, but only after the Chief Executive confirmed to the President that the reductions would not adversely affect the Court's judicial business. Unilateral cuts have been an unhappy feature of the Court's early life: in all of most recent autumn statements except one the Coalition Chancellor has announced that almost all departments in Whitehall must make additional savings, and this has applied to the Supreme Court, which in the lexicon of Whitehall is a non-ministerial government department.

That tensions with the Ministry spiked during this period over funding is scarcely surprising. It took time for the Court and Ministry to foster the trust and confidence necessary for negotiations over the thorny issue of cuts. From the Court's perspective, it was easier to deal with officials from the Treasury than the Ministry, because the former were felt by the Court to have a better grasp of how cuts could be secured without encroaching upon constitutional principles. The limited constitutional understanding of even senior officials at the Ministry was a concern commonly aired inside the Court. Emblematic is the comment by a Justice that there are 'senior, highly intelligent civil servants [in the Ministry] who almost seem to have a mental block when it comes to understanding what is implied by the Court's independence'. Another Justice referred to 'a diminished appreciation of the rule of law' within the Ministry. Concerns about a waning constitutional understanding amongst civil servants at the Ministry have not been confined to the Court, with similar complaints voiced from time to time inside the Royal Courts of Justice and independent bodies such as the Judicial Appointments Commission. The changing culture of the department headed by the Lord Chancellor pre-dates the 2005 reforms, but has been arguably accentuated by them. The 2005 structural reforms have removed some of the ways in which shared understandings of the importance of constitutional principles such as judicial independence and the rule of law were nurtured between the legal and political elites, perhaps most obviously by stripping the office of Lord Chancellor of its judicial trappings. As shared values have waned, so there has been room for other values to become more (and some might say, overly) prominent, such as value for money and cost effectiveness.

As the Court saw it, the Ministry's propensity to prioritize cost effectiveness over constitutional principle was illustrated when the Ministry proposed in 2010 that the Court's administration should be merged with HMCTS in order to cut costs. This was 'totally unacceptable', according to the Justices, since the independence of the Court's administrative operation underscored their own independence. [42] The Justices further opposed the merger on the grounds that the Court was a UK institution with a UK-wide jurisdiction, and thus it would be constitutionally inappropriate for its administrative staff to be subsumed within an executive agency responsible for and primarily associated with the courts in England and Wales. The proposed merger was ultimately shelved, but not before relations between the Court and the Ministry soured. Inside the Ministry, it was felt that the Justices did not grasp that the Court was part of the public sector, with this illustrated by what some Ministry official regarded as the 'exorbitant costs' sought by the Justices when Middlesex Guildhall was being refurbished prior to the Court's opening in 2009. From the Ministry's perspective, the Justices of the Supreme Court were slower to realize the need for budget discipline than their judicial counterparts at the Royal Courts of Justice. On both sides, it was widely felt that an unfortunate clash of personalities between officials in the Court and the Ministry inflamed the inevitable tensions over funding from the UK Government, a matter to which we will return in a subsequent section.

4.2 Contribution System

In line with the UK Government's policy for other parts of the judicial system, the Court is required to recover all of the costs of its civil business. These costs are borne in part by the Court's users, but in order to meet the full costs of its civil business, contributions are also received from the Courts and Tribunals Service in England and Wales, the Northern Ireland Courts Service and the Scottish Government. According to a senior official, the contribution system is 'difficult to operate in practice'. In the years 2009-2010 and 2010-2011, sizable contributions were due from HM Court Service ('HMCS'), as the English and Welsh Courts Service was then known. In both years, HMCS failed to pay its contribution. Initially, the Ministry refused to make up the shortfall, with this leading to such a serious problem that the Court was a matter of days away from being unable to pay its staff. Only after the Chief Executive wrote to the Ministry's Permanent Secretary to convey the gravity of the Court's position did the Lord Chancellor agree to pay the shortfall. After a couple of years of uncertainty about whether HMCS would pay the sums due, and whether the Ministry would step in if HMCS failed to do so, the Court and the Ministry reached an agreement in 2011 whereby the Lord Chancellor would guarantee to cover the contribution from HMCS (and its successor body, HMCTS). This avoids what one of the Justices called 'the continuous distraction of worrying whether the contribution due from [HMCS/HMCTS] would be forthcoming'. HMCS's failure to make its contributions in 2009-10 and 2010-11 was less a nefarious ploy to withhold money from the Court and more a very human failure inside HMCS to ensure that relevant monies were allocated for this purpose. This human failure was in turn a product of the five-year time lag between initial negotiations in 2004 about funding during the parliamentary passage of the Constitutional Reform Bill and the Court beginning its work in 2009. During this time, many of the civil servants responsible for designing the funding formula had moved onto to roles in other parts of Whitehall, with inadequate steps taken to capture in the institutional memory of the Ministry and HMCS their understanding of how the funding formula was to work.

Another reason why the contribution system has proven difficult to operate is because it is open to manipulation by politicians. This was illustrated by the response of SNP ministers in the Scottish Government to the Court's decisions in Cadder [43] and Fraser. [44] The Court has no general jurisdiction over Scottish criminal appeals. [45] However, one unintended consequence of the Scotland Act 1998 was to create a de facto appeal route to the Privy Council and, since 2009, the Court in Scottish criminal cases. Section 57(2) of the Scotland Act prohibits Scottish Ministers from acting incompatibly with the ECHR. Prosecutions in Scotland are taken in the name of the Lord Advocate, who is strictly speaking a minister in the Scottish government. As a consequence, a right of appeal was in effect created in criminal cases. Defendants could seek judicial review of the Lord Advocate's decision to prosecute if there was an arguable breach of the right a fair trial under Article 6. The number of appeals reaching either the Privy Council or the Supreme Court via this route has been comparatively small, with only 29 full appeals between 1999 and 2011. [46] However, the appeals have provoked fierce criticism within both the Scottish political and legal spheres, including amongst Scottish judges, reflecting the importance traditionally placed on the independence of the Scottish legal system. [47]

These criticisms became particularly toxic in 2010 following Cadder, where the Court unanimously agreed to overturn the decision of the High Court of Justiciary by holding that interviewing suspects in the absence of a solicitor in the six hours while a suspect was detained in custody was incompatible with Article 6. [48] In 2011, Fraser provoked an even stronger reaction amongst SNP politicians after the Court quashed a conviction following non-disclosure of evidence that raised an issue of whether there had been a fair trial within the meaning of Article 6. Within a week of the Court's decision in Fraser, Kenny MacAskill, the SNP Justice Secretary, threatened to withhold the contribution to the Court's funding due from the Scottish Government on the grounds that Scottish Ministers viewed the Court's exercise of its jurisdiction under s. 57(2) as an illegitimate interference in Scotland's criminal justice system. As Kenny MacAskill put it: 'He who pays the piper ... calls the tune'. [49] As it happens, the Scottish Government has been fastidious in paying the Court the sums owed by them, both before and after MacAskill's threat. Yet regardless of whether MacAskill's objective was to pressurize the Court into revising its approach to accepting Scottish criminal appeals or merely to inflame separatist sentiment ahead of the independence referendum in 2014, his comments illustrate how the contribution system can be used as a weapon depending on the political priorities of this or that minister. [50]

4.3 Funding: the Next Five Years

There can be no doubt that the Court's funding formula has been much more problematic than Lord Falconer envisaged ten years ago. The devolutionary dimensions to the financial arrangements also acquired a greater prominence and more quickly than most had anticipated. Some of the tensions have eased over the last couple of years, in part as key personnel in the Ministry moved onto other posts and in part as the politics of devolution in Scotland shifted away from the Court's jurisdiction towards the independence referendum in September 2014. At the same time, the Court's ability to engage in effective financial planning has been helped by developments such as the additional flexibility enjoyed by the Court under Whitehall's budget exchange scheme whereby it can apply to the Treasury to retain any additional resources raised through fee income. But much of the Court's operating costs are fixed, which might prove problematic if-as seems likely-more savings are sought across almost all public bodies over the next five years. At the very same time as the UK Government might be looking for further cuts in the Court's expenditure, the Court will have to be embark on a programme of planned maintenance of Middlesex Guildhall, a worrying reflection of the fact that the upkeep of its own building is a serious drain on its finances. Occasional tensions between the Court and the Ministry therefore seem likely, which will test the skill, diplomacy and resolve of the Court's leadership. And of course significant scope for strained relations remains, largely because of the serious structural weaknesses in the Court's funding formula. To try to secure a more stable financial footing, the Court will not only increase its fees, but may also seek to persuade the Treasury as part of the post-election spending review to replace the funding formula with a parliamentary grant similar to that received by the National Audit Office. Arguably, a parliamentary grant with no ministerial involvement is a more appropriate basis for funding the top court. It remains to be seen how the Treasury might respond to such a proposal at a time when further cuts are being sought from across the public sphere. Inside the Court, however, it is widely felt that its operating costs have been reduced as far as possible. As someone intimately involved in the running of the Court put it: 'if this country wants a Supreme Court, it needs to be willing to pay a modest amount to have one'.

5. Administrative Independence

Relations between officials at the Court and the Ministry reached their lowest ebb around 2010-11 following a fracas involving the Chief Executive and the Ministry's Permanent Secretary. During the passage of the Constitutional Reform Act, the Lord Chancellor, Lord Falconer, had explained that the Chief Executive would be 'answerable to the President, in accordance with whose directions [she would] be required to act in carrying out [her] functions'. [51] In 2011, in a public lecture outlining his concerns about the finer details of the Court's financial and administrative independence, the Court's then President Lord Phillips quoted Falconer's statement, arguing that it was essential to the independence of the Justices that the Chief Executive should owe her primary loyalty to the President, and not the Lord Chancellor. [52] As Lord Phillips saw it, 'there are those within the Ministry who do not appreciate this' and instead 'treat it as axiomatic that civil servants' duties are owed to Ministers'. [53] Within hours of Phillips' lecture, the then Lord Chancellor, Kenneth Clarke, was on BBC Radio 4's Today Programme emphasizing that the Chief Executive is a civil servant who, although accountable to the Court's President, 'is also part of the government' and by implication owes a duty to the UK Government akin to that of a departmental civil servant. [54]

The significance of this exchange between the President and Lord Chancellor can only be understood against the background of events one year earlier that occurred in the shadow of the Constitutional Reform and Governance Act 2010. This Act put the Civil Service Code on a statutory footing. Paragraph 14 of the Code provides that civil servants 'serve the Government, whatever its political persuasion' and must do so 'in a way which deserves and retains the confidence of Ministers'. In early 2010, and while the Constitutional Reform and Governance Bill was before Parliament, the Court's President sought an assurance from then Lord Chancellor, Jack Straw, that the Court's permanent staff would not owe a duty of loyalty to ministers. Echoing Falconer's earlier statement, Straw confirmed in an exchange of letters that the Court's staff reported to the Chief Executive, who in turn worked at the direction of the President and did not report to the government of the day. [55] Attempts by the Chief Executive to have the Bill amended to reflect this were unsuccessful as there was insufficient time to do so ahead the impending General Election in May 2010. The Court secured instead a ministerial statement in the Lords clarifying that the general duty of loyalty owed by civil servants to ministers did "not affect civil servants who are on loan to or directly employed by bodies such as the Supreme Court ... whose duty is to serve the organization they are seconded to or employed by". [56]

A few months later at a press conference in July 2010, the Chief Executive was asked about proposed cuts to the Court's budget of 40%. Noting that 62% of the Court's expenditure was fixed, the Chief Executive suggested that the Court 'couldn't actually deal with any casework ... with a 40% cut'. Although stressing that she 'didn't want to negotiate in public', the Chief Executive said that preserving monies to support casework would be the priority but that the Court's public engagement work would be 'more vulnerable'. [57] Shortly after the press conference, the Ministry's Permanent Secretary complained to the President that the Chief Executive broke the Civil Service Code by criticizing the Government in public and intimated that the Ministry was considering whether to take disciplinary action against her. As an official at the Ministry commented, there was 'enormous pushback' from the President, who told the Permanent Secretary that the Chief Executive spoke at the press conference at the President's direction, stressing that the Chief Executive served the Court, not the Government. In the face of the President's strong defence of the Chief Executive, the Ministry chose not to pursue the matter further. This low point in relations with the Ministry created an environment that was, as an official put it, 'very corrosive'. Even aside from this episode there were around this time complaints from both sides that emails and telephone calls were passing without answer, and if answered replies were often 'vituperative', according to one official. It was very plain to others in the Court and Ministry that key officials held each other in low regard. Fortunately, relations later improved, in part as abrasive personalities moved on to other roles, but this episode reinforced a feeling inside the Court that it must be vigilant against threats to the Court's administrative independence.

At one level, this dispute over the accountability lines of the Chief Executive was a consequence of the fact that the Ministry's assumptions about the role did not reflect the reality of the office's functions. [58] On a day-to-day basis, it was clear that the Chief Executive works under and reports to the President, and not the Lord Chancellor, but this point was not adequately appreciated by senior officials in the Ministry. As one Justice observed, there is no doubt that the Chief Executive 'bats for the judges'. The Chief Executive in practice decides how the budget is allocated and is accountable for this to the Public Accounts Committee, and thus arguably it was entirely appropriate for her to spell out in the public the implications of any budget cuts. At the same time, it could be argued that it was imprudent for the Chief Executive to appear to be publicly criticizing the Government, even if invited to do so by the President. Comments on such sensitive matters are arguably best left to the President, and even then only once it has become clear that negotiations in private have failed. A better view is that the Chief Executive, as the Court's Accounting Officer, bears ultimate responsibility for the Court's financial health and should use all available tools to press the Court's case for more resources. In doing so, the Chief Executive serves as an important buffer between the Justices and the Ministry, with it preferable that a backlash from the Ministry should be focused on her public comments rather than those of the President.

At another level, the dispute demonstrates that it is now more difficult to establish and maintain shared understandings between the UK's top judges, politicians and civil servants in a now more formally separated institutional landscape. It is notable, for example, that while the Lord Chief Justice and staff in the Judicial Office interact frequently with the Lord Chancellor and Ministry officials on a wide range of issues (including funding, deployment, discipline and appointments), the Court only interacts with the Ministry on a fairly narrow range of issues, and principally funding. The level of contacts between civil servants from the Court and Ministry is accordingly much less extensive than between the Judicial Office and Ministry. There is much less contact between principals as well: whereas the Lord Chief Justice and Lord Chancellor meet monthly, the President and the Lord Chancellor have tended to meet formally only twice yearly. What bears emphasis is that most of the tension between the Court and the Ministry has occurred at official level and, even then, tensions tended to reflect not a concerted attempt to undermine the Court but appeared to be the product of personality clashes and the tendency of officials inside the Ministry to treat the Court as if it were a run-of-the-mill executive agency subject to close oversight by the Ministry. Tensions have been more bureaucratic, in other words. For the most part, they have not been caused directly by the decisions or actions of any of the Lord Chancellors who have occupied that office since 2009.

The challenge of nurturing constructive relationships at official level has been compounded by a rapid turnover of staff within the Ministry (although, then again, rapid turnover can be useful, such as when tensions over the loyalty of the Chief Executive eased after certain officials moved to other roles outside of the Ministry). Combined with high levels of turnover has been a transfer of many judiciary-related functions from the Lord Chancellor and the Ministry to the Lord Chief Justice and the Judicial Office. Since its creation in 2006, the Judicial Office has acquired 200 staff and responsibility for training, welfare, human resources, media support and policy advice. One consequence of the hollowing-out of the Ministry is that some of the knowhow about how to deal with the judiciary has been lost, which goes some way to explaining why the Court's early years were marked by behind-the-scenes struggles with officials at the Ministry. Officials inside the Court felt that they had to spend too much time explaining the importance of the Court's administrative independence to Ministry officials-and each time there were staff changes in the Ministry, the Court's officials felt like that they were required to do so all over again. The Court sometimes seized on small issues to make larger points about judicial independence. For example, the Chief Executive reminded counterparts in the Ministry that the Court was entitled to respond directly to the Cabinet Office, not indirectly via the Ministry, on issues such as data storage. Unfortunately, this led some officials at the Ministry to complain that the Court has 'sharp elbows'. A further consequence of staff changes was that business was slow to transact. For around three years, the Court and the Ministry sought to reach an agreement mapping out their various responsibilities. [59] This agreement was essentially only a pared down version of the responsibilities already outlined in statue, yet staff changes meant that the drafting process kept returning to 'square one', as one official described it. Fortunately, relations have improved in the last couple of years, with a sense inside the Court that there is now an adequate understanding amongst civil servants at the Ministry of the Court's constitutional status.

The tensions which arose over the question of the Chief Executive's loyalty and accountability also illustrates how the leadership team must be creative when safeguarding the Court's interests. For example, there was pushback in private by the President when the Permanent Secretary complained about the Chief Executive. Several months later the President used a public speech to articulate, albeit in rather oblique terms, his concerns about the incident. Two years later, the Court's then new President, Lord Neuberger, encouraged his predecessor, Lord Phillips, to propose amendments in the House of Lords to the Crime and Courts Bill that would remove the Lord Chancellor from the process of selecting the Chief Executive as well as any role in the Court's staffing decisions. The Government eventually accepted these amendments. [60] The Court's creative approach to defending its interests requires political skill and an ability to play the long game. This is also all the more important given that the Court's President lacks some of the formal protections available to the heads of the other judiciaries in the UK; for example, the President does not have a power to lay representations before Parliament on matters of concern to the Court equivalent to that enjoyed by the Lord Chief Justice. [61]

5.1 Administrative Independence: the Next Five Years

After the nadir of the clashes in 2010, relations between the Court and Ministry have improved. Personnel changes at the very top of the Ministry of Justice have assisted in recalibrating its relationship with the Court. Statutory changes introduced in 2013 to the process of appointing the Chief Executive as well as the rest of the administrative staff have also helped to put key aspects of the Court's management on a clearer, more stable footing. An obvious challenge for the administrative leadership in the next few years will be the need to get more from less as more and more pressure is put on the Court's already modest budget. With Jenny Rowe retiring in 2015, this will be the challenge confronting a new Chief Executive. The Chief Executive will be well advised to follow Rowe's lead by being proactive in explaining to civil servant across Whitehall the implications for the Supreme Court of a range of policies (e.g. on legal aid, reforms to judicial review, the possible repeal of the Human Rights Act, a possible In/Out EU referendum and the continuing changes to the devolution schemes. In doing so, the Chief Executive will need to seek out new and fruitful ways of fostering an appreciation of the Court's unique constitutional status inside the Ministry as the same time as the UK government's involvement in day-to-day decisions about the judicial systems is being hollowed out.

6. Conclusion

Lawyers can be prone to overstating the importance of rules, laws, structures and processes in shaping institutional outcomes. At the same time, they often understate the importance of the human aspects of institutional interactions. Amongst the many strengths of Alan Paterson's work on the House of Lords and latterly the Supreme Court is his emphasis on appellate decision-making as a product of both the formal (rules, laws, structures and processes) and the informal (personalities, information flows, workplace geography). Appellate decision-making is, Paterson's work has shown us, a collective social process that is conditioned by both formal and informal considerations. In this paper, I have sought to follow Paterson's example by pointing to the importance of informal factors (e.g. personalities, staff turnover and institutional memory) in shaping the financial and administrative working of the Supreme Court. In doing so, I have sought to show that the independence of the Supreme Court is a collective social process requiring the good faith engagement of multiple political, judicial and legal actors. The collective dimensions to the running of the UK's top court is much more obvious now than it was prior to the creation of the Supreme Court. The Court's financial and administrative arrangements involve a large number of actors, not only in Whitehall and Westminster, but across the UK. Relations with these actors must be managed, which is a more challenging task as a result of the more formal separation of the political and judicial realms following the Constitutional Reform Act. Particularly tense has been the relationship between the Court and the Ministry of Justice. No doubt many of the tensions between the Court and the Ministry were unavoidable in an age of austerity. Similarly it was inevitable that there would be teething troubles as the finer details of how to administer the Court were worked out. But even acknowledging all of this, the Court's experience in its initial five years is a useful reminder that informalities matter. Informal factors are likely to matter just as much in the day-to-day running of the UK's top court over the next five years as well.

[1] Birmingham Law School, University of Birmingham

[2] A. Paterson, Final Judgment: The Law Lords and the Supreme Court (Oxford: Hart, 2013).

[3] Ibid at 9-10.

[4] But see also A. Paterson and C. Paterson, Guarding the Guardians? Towards an Independent, Accountable and Diverse Senior Judiciary (London: CentreForum, 2012).

[5] This paper draws on confidential interviews that Robert Hazell, Kate Malleson, Patrick O'Brien and I conducted between 2011-2015 with judges, politicians and officials as part of an AHRC-funded project on judicial independence. Unattributed quotes and information are drawn from these interviews. For the project's primary output, see: G. Gee, R. Hazell, K. Malleson and P. O'Brien, The Politics of Judicial Independence in the UK's Changing Constitution (Cambridge: CUP, 2015).

[6] See R. Masterman, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom (Cambridge: CUP, 2010).

[7] See generally M. Shapiro, Courts: A Comparative and Political Analysis (Chicago: The University of Chicago, 1981) 1.

[8] For an excellent overview, see V.C. Jackson, 'Judicial Independence: Structure, Context, Attitude' in A. Seibert-Fohr (ed.), Judicial Independence in Transition (New York: Springer, 2012) 17.

[9] It is not uncommon to pair the words "judicial independence" and "collective". However, this pairing usually denotes that there are institutional as well as individual dimensions to judicial independence, which in turn points to the importance of some level of judicial self-governance over matters such as the training, deployment and the running of the court service. Throughout this paper, I use collective in a different but equally important sense: i.e. to signal that judicial independence is a product of the actions and decisions of a wide range of actors from across the judicial legal and political systems.

[10] P.H. Russell, 'Towards a General Theory of Judicial Independence' in P.H. Russell and D.M. O'Brien (eds), Judicial Independence in the Age of Democracy: Critical Perspectives from around the World (Charlottesville, University of Virginia Press, 2001) 1, 11

[11] S. Holmes, 'Judicial Independence as Ambiguous Reality and Insidious Illusion' in R. Dworkin (ed), From Liberal Values to Democratic Transition: Essays in Honor of János Kis (Budapest: CEU Press, 2004) 3, 11.

[12] See J. Vallance White, 'The Judicial Office' in L.Blom-Cooper, B. Dickson and G. Drewry (eds), The Judicial House of Lords, 1876-2009 (Oxford: OUP, 2009) 30.

[13] See generally D. Woodhouse, The Office of Lord Chancellor (Oxford: Hart, 2001) 99-132.

[14] On the latter, see G. Gee, 'What are Lord Chancellors for?' [2014] P.L. 11.

[15] Constitutional Reform Act 2005, s24.

[16] Constitutional Reform Act 2005, s40(1) and Schedule 9. There was speculation that the Court's creation might encourage the Justices to enlarge their powers, but to date such suggestions appear to have been 'wide of the mark': B. Dickson, Human Rights and the UK Supreme Court (Oxford: OUP, 2013) 3.

[17] Though twice as large as the administrative operation in judicial House of Lords, the Supreme Court is of course exceptionally small in Whitehall terms as well as much smaller than the other courts services in the UK. As the former Deputy President of the Court, Lord Hope, has put it: '[d]espite it rather grand name, [the Supreme Court] is a very small institution': Lord Hope, Do We Really Need a Supreme Court?, November 2010, Newcastle Law School.

[18] In 2013-2014, the Court employed 40 permanent staff plus 9 on a fixed contract, with a broadly similar number employed under service contracts (e.g. security; catering; building maintenance). These figures also cover staff used by the Judicial Committee of the Privy Council: The Supreme Court, Annual Report and Accounts 2013-2014 (London, TSO, 2014), p60.

[19] R. Cornes, 'A Constitutional Disaster in the Making? The Communication Challenge Facing the United Kingdom's Supreme Court' [2013] P.L. 266, 268.

[20] G. Drewry, 'The UK Supreme Court: A Fine New Vintage or Just a Smart New Label on Dusty Old Bottle?' (2011) 3 International Journal for Court Administration 20, 31.

[21] R. Cornes, 'Gains (and Dangers of Losses) in Translation: The Leadership Function in the United Kingdom's Supreme Court, Parameters and Prospects' [2011] P.L. 509, 517.

[22] Bingham's influence as Senior Law Lord was perhaps more intellectual and jurisprudential than administrative and managerial. See generally B. Dickson, 'A Hard Act to Follow: The Bingham Court, 2000-2008' in L. Blom-Cooper, B. Dickson and G. Drewry (eds), The Judicial House of Lords, 1876-2009 (Oxford: OUP, 2009) 257; Baroness Hale, 'A Supreme Judicial Leader' in M. Andenas and D. Fairgreave (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford: OUP, 2009) 2009; and A. Paterson, Lawyers and the Public Good: Democracy in Action (Cambridge: CUP, 2012) 180-181.

[23] Constitutional Reform Act 2005, s38(1) and s39(1)-(4).

[24] Constitutional Reform Act 2005, s45(1).

[25] Constitutional Reform Act 2005, ss25-31 and Schedule 8, as amended by the Crime and Courts Act 2013.

[26] An example of the User Group's influence can be seen in the Court's decision that advocates may, by agreement, dispense with any or all of the elements of traditional court dress. This was largely driven by a suggestion by Michael Fordham QC at the User Group, which was later discussed at a meeting of the Justices: See UKSC/JCPC User Group, Minutes, 10 June 2011, para (c); and UKSC/JCPC User Group, Minutes, 20 January 2012, para 2.

[27] Constitutional Reform Act 2005, s48(3)(b).

[28] See generally G. Gee, 'Guarding the Guardians: The Chief Executive of the UK Supreme Court' [2013] P.L. 538.

[29] Constitutional Reform Act 2005, s51(1).

[30] Constitutional Reform Act 2005, s54(1).

[31] [ ... ].

[32] See e.g. the Supreme Court Management Board, Minutes (January 2015) at 5.4.

[33] J. Rowe, Speech to the Government Legal Service (26 March 2010).

[34] The Supreme Court Management Board, Minutes (27 May 2010) at 4.1.

[35] G. Drewry, 'The UK Supreme Court: A Fine New Vintage or Just a Smart New Label on Dusty Old Bottle?' (2011) 3 International Journal for Court Administration 20, 31.

[36] The estimate for the Appellate Committee combines the Judicial Office's costs with its apportioned share of costs such as utilities, telephones and accommodation and for the use of staff employed by the wider House of Lords (e.g. library staff). Judicial salaries were paid directly from the Consolidated Fund. The estimate does not include any contribution towards the building and maintenance upkeep of the Palace of Westminster. Amongst the most substantial costs of the Supreme Court are those arising from renting and maintaining Middlesex Guildhall, a Grade II listed building. Though salaries continue to come from the Consolidated Fund, there are now included in the Court's operating costs.

[37] See generally Concordat between the Ministry of Justice and the Supreme Court of the United Kingdom (DEP2014-0133 2013) at 5.

[38] G. Drewry, 'The UK Supreme Court: A Fine New Vintage or Just a Smart New Label on Dusty Old Bottle?' (2011) 3 International Journal for Court Administration 12.

[39] Hansard , HL, vol. 667, col. 1245, 14 December 2004.

[40] Lord Phillips, Judicial Independence and Accountability: A View from the Supreme Court, UCL, 8 February 2011.

[41] UK Supreme Court Management Board, Minutes, 23 March 2010, para 8.1

[42] Lord Phillips, Judicial Independence and Accountability: A View from the Supreme Court, UCL, 8 February 2011.

[43] Cadder v. H.M. Advocate [2010] UKSC 43.

[44] Fraser v. H.M. Advocate [2011] UKSC 24.

[45] Constitutional Reform Act 2005, s40(3).

[46] UK Supreme Court, Scottish Criminal Cases and the UK Supreme Court (2012).

[47] Submission by the Judiciary in the Court of Session to the Commission on Scottish Devolution (10 October 2008) para. 13.

[48] See generally Lord Hope, 'Scots Law Seen from South of the Border' (2012) 16 Edinburgh LR 58, 72-5.

[49] 'MacAskill Threat to End Supreme Court Funding' The Herald (31 May 2011).

[50] In response to concerns about the Court's devolution jurisdiction in Scottish criminal appeals, the Scotland Act 2012 introduced a new 'compatibility' procedure for raising ECHR or EU law issues that arise in criminal cases (which is somewhat similar to the preliminary reference procedure whereby national courts can refer questions of EU law to the European Court of Justice). The Supreme Court may only determine a compatibility issue and must then remit proceedings to the High Court of Justiciary for the case to be concluded. Prior to the 2012 Act, it had been for the Supreme Court to decide whether to make such order and the content of that order.

[51] HL Deb 14 December 2004, vol 667, col 1239.

[52] Lord Phillips, Judicial Independence and Accountability: A View from the Supreme Court, UCL, 8 February 2011.

[53] Lord Phillips, Judicial Independence and Accountability: A View from the Supreme Court, UCL, 8 February 2011.

[54] H. Mulholland, 'Kenneth Clarke Rejects Claim of Threat to Supreme Court Independence' The Guardian (9 February 2011).

[55] UK Supreme Court, Management Board: Minutes of the Meeting Held on 23 March 2010 (n 62) 3.2.

[56] HL Deb 24 March 2010, vol 718, col 960 (Lord Bach). This is reflected in the version of the Code laid before Parliament in 2010 at fn 7, which acknowledges that some civil servants are answerable to the office-holder of their organisation.

[57] N. Hanman, 'Cuts "Would Close Supreme Court"' The Guardian (29 July 2010).

[58] For the argument that the dispute was also a reflection of the mixed 'constitutional' and 'bureaucratic' visions of the office of Chief Executive in the Constitutional Reform Act, see Gee (n 40).

[59] See Concordat between the Ministry of Justice and the Supreme Court of the United Kingdom (DEP2014-0133 2013)

[60] See Constitutional Reform Act 2004, ss48-49, as amended by s29 of the Crime and Courts Act 2013.

[61] Constitutional Reform Act 2005, s. 5. As of the end of 2014, the possibility of giving the President a similar power was being considered.